My co-blogger Josh Blackman has an interesting post, observing that the current Roberts Court has largely left Warren Court precedents in place, while often undoing Burger Court precedents. Blackman's argument is well-made. But in concluding his post, Blackman diverts into an unnecessary attack on Chief Justice Burger. Blackman suggests it was Chief Justice Burger who was "driving those trains" that went off the tracks. As a former law clerk for "The Chief" (as we called him), I'm biased. But I believe Blackman's criticisms of The Chief miss their mark. Blackman fails to adequately consider the situation that The Chief all too often himself in—one vote on a nine-Justice court that was often inclined to reaffirm and even expand dubious Warren Court precedents. And, if he had joined or written dissenting opinions, the result would often have been that the case assignment would have then moved from him (as the senior, Chief Justice) to a very liberal justice, with an even worse decision likely emerging. Working within these considerable constraints, The Chief took important steps to help to set the stage for the later originalist revolution.
Blackman launches his attack by looking at nine decisions of the Burger Court that have since been reversed. For convenient reference, I reproduce Blackman's list below:
